Thursday, June 10, 2010

Earlier this week, Virginia Attorney General Ken Cuccinelli provided the following update on the Commonwealth's legal challenge to President Obama's healthcare reform:

I am writing you tonight to make sure you know of an important development in Virginia's case against the federal healthcare law. Today, Virginia filed its brief in opposition to the federal government's attempt to dismiss Virginia's lawsuit against the new federal healthcare law.

While it's over two months since we first filed this suit - in legal terms, this case is moving at a lightning pace!

As I wrote all of you last week - the U.S. responded to our lawsuit with a motion to dismiss the case - which we fully expected.

What I didn't share with you was the in-depth legal reasoning behind their claims - and our opposition to their motion to dismiss. Below is a simple but thorough chart which explains our arguments in the case. I would encourage all of you to take a look - and let me know your thoughts!

The U.S. has to file its reply brief by June 22, and then the oral arguments on the motion to dismiss will take place on July 1 at 10 a.m. - one hour for each side.

If Virginia's case is not dismissed and moves forward, a summary judgment hearing is scheduled for October 18.

The information below is a good preview; however, I hope all of you will sign up to attend our exciting webcast being held on June 16th - next Wednesday - to discuss the case and its foundation. Please sign up by clicking here today!

This case is fascinating, and I would encourage each of you to read our brief, as it is a spectacular mix of Constitutional law, American history and relevant commentary on the process the healthcare bill went through on its way to becoming law. To see a copy of Virginia's brief click here, but the first line gets right to a counter to the US's sickly view of federalism: "In the view of Secretary Sebelius, federalism is so withered and near death that States lack the power and right to go to federal court to test the validity of their own enactments when they conflict with federal law."

It's worth the time to read it, and you'll be better prepared to advocate on behalf of the first principles we're defending. And, by the way, that's also why we'd like you to join us for the webcast on the healthcare law and lawsuit - so you'll better understand why we are doing what we're doing, and you'll be able to educate others on our precious first principles. So, please sign up today! It requires pre-registration.

I hope you like the chart, I happen to think it's a pretty cool way to lay the whole case out at this stage.

Federal Government's Claim: Virginia is not injured by the federal health care law.Virginia's Response:
Because the federal health care law purports to invalidate a Virginia law (the Health Care Freedom Act) under the Constitution's Supremacy Clause, Virginia's sovereign interests have been injured.

Federal Government's Claim: Because the mandate doesn't take effect until 2014, the case is not "ripe". Virginia's Response:
1) Based on several previous Supreme Court decisions, if a dispute is certain to occur in the future, this does not prohibit the suit from being brought in the present.
2) Virginia has already been forced to make decisions regarding insurance exchanges under the act, as well as changes to Medicaid. One of those decisions made the commonwealth forego more than $100 million in federal money.

Federal Government's Claim: Virginia's suit is barred by the Anti-Injunction Act.Virginia's Response: The act does not apply to states under these circumstances, because Virginia's action falls within an exception to the act that has been recognized by the Supreme Court.

Federal Government's Claim: The government has the power under the Constitution's Commerce Clause to mandate the purchase of individual health insurance.Virginia's Response:
1) The federal government's argument is contrary to the text of the Constitution.
2) The federal government's argument is contrary to the meaning of the words of the Commerce Clause as understood by the Founders.
3) The federal government's argument is contrary to the historical context of the nation's founding. When Great Britain instituted a tax on tea, the colonists' response was to boycott and to not buy tea. Parliament had the power to regulate commerce, but even it did not attempt to force colonists to buy the taxed product.
4) The federal government's argument is contrary to the traditional uses of the Commerce Clause. The clause has always been used to regulate economic activity; never inactivity.
5) The federal government's argument is contrary to the precedent of the U.S. Supreme Court. The Court has set outer limits to the reaches of the Commerce Clause, including in cases such as Lopez and Morrison, saying that the clause must have principled limits, otherwise the federal government essentially would have unlimited power, rather than the limited powers enumerated in the Constitution.

Federal Government's Claim: Even if refusing to buy insurance is not commerce, the government can still force people to buy health insurance using the Constitution's Necessary and Proper Clause.Virginia's Response:
1) Since 1819, the Supreme Court has held that any use of the Necessary and Proper Clause must be consistent with both "the letter and spirit" of the Constitution. Any interpretation that would destroy the federal form of government (where federal power is limited only to those powers enumerated in the Constitution, with remaining powers reserved to the states and the people) is not allowed under that standard.
2) In May, the Supreme Court decided Comstock.
The Court adopted a historical approach to the use of the Necessary and Proper Clause. Because the mandate is utterly unprecedented, it is unlikely to be upheld under a historical approach.

Federal Government's Claim: Even if the government cannot win using the Commerce Clause and Necessary and Proper Clause arguments, the federal health insurance mandate can be justified under the government's taxing authority.Virginia's Response:
1) The penalty for not buying insurance is not a tax. Congress called it a "penalty" and claimed authority to act only under the Commerce Clause. To argue otherwise now ignores what Congress actually did.
2) A penalty for inaction is not a tax of any kid known to the Constitution, when judged historically.

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